Rednut Holdings Pty Ltd

[2013] FWCA 7055

[2013] FWCA 7055

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Rednut Holdings Pty Ltd
(AG2013/2682)

REDNUT HOLDINGS PTY LTD - ENTERPRISE AGREEMENT 2013-2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 27 SEPTEMBER 2013

Application for approval of the Rednut Holdings Pty Ltd - Enterprise Agreement 2013-2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Rednut Holdings Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Rednut Holdings Pty Ltd - Enterprise Agreement 2013-2017 (the ‘Agreement’). The Agreement is to cover 17 employees who are engaged at the applicant’s franchise restaurant, commonly known as Dome, Mt Lawley in Western Australia.

[2] The employees were last notified of their representational rights on 26 June 2013, and voting for the Agreement’s approval took place on 30 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 15 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 September 2013. While I note that this is outside the statutory time limit set out in s 185(3)(a), I note that employees have been paid in accordance with the Agreement since its approval and I consider it fair in all the circumstances to extend the time for filing the application until 2 September 2013 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Ms R Nicol-Henry identified the Restaurant Industry Award 2010 [MA000119] and the Restaurant, Tearoom and Catering Workers’ Award, 1979 [AN160276] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Nicol-Henry said that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the lack of provision of a day’s job search entitlement in cases of termination other than redundancy, the non-inclusion of an entitlement to transfer to lower paid duties in redundancy situations, the removal of a number of non-applicable allowances and the lack of provision for a minimum break between shifts. However, the Agreement also provides for a number terms and conditions that are more beneficial than those under the reference instruments, including, higher ‘loaded’ rates of pay, a minimum engagement of four hours for part time employees and a provision for an employee who performs work that carries a higher rate of pay to be paid at that higher rate of pay for all hours worked. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.4 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 10 September 2013, Mr C Agnew, Solicitor,appeared with Ms R Nicol-Henry for the applicant. Mr Agnew outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He offered to provide an undertaking that rates of pay would be increased in accordance with the Commission’s Annual Minimum Wage Review Decision. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 188, 190 and 193, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Rednut Holdings Pty Ltd - Enterprise Agreement 2013-2017.Pursuant to s 54 of the Act, the Agreement shall operate from 17 September 2013 and have a nominal expiry date of 1 March 2017.

DEPUTY PRESIDENT

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